Hope v Bathurst City Council [1980] HCA 16

High Court of Australia Gibbs, Stephen, Mason, Murphy and Aickin JJ. Hope v Bathurst City Council [1980] HCA 16

ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of New South Wales (Court of Appeal) be set aside and in lieu thereof order:

(a) That the appeal to that Court be allowed with costs;

(b) That the questions asked in the Stated Case be answered as follows:

Question 1: Did I err in law in holding that it was a question of fact whether the activities of the appellant on the land fell within the description of one or both of the words "business" or "industry" in the definition of Rural land in s. 118 of the Local Government Act 1919?

Answer: Yes.

Question 2: If the answer to Question 1 is yes, should I have allowed the appeal as a matter of law?

Answer: No; other issues remain to be decided.

Question 3: On the facts found and admitted should I, as a matter of law, have held the appellant had discharged the onus of proof (vide s. 118 (7)) that the land was rural land?

Answer: No; see answer to Question 2 above.

Question 4: If the answer to Question 3 is yes should I, as a matter of law have allowed the appeal?

Answer: No; see answer to Question 2 above.

(c) That the matter be remitted to the Land and Valuation Court to be dealt with in accordance with the above answers and for determination of the other issues involved.

20 June 1980

Cur. adv. vult.

The following written judgments were delivered:—

June 20 Gibbs and Stephen JJ.

We have had the advantage of reading the reasons for judgment prepared by our brother Mason and agree with them. There are a few additional observations which we wish to make.

The question whether the appellant's land came within the definition of rural land in s. 118 (1) of the Local Government Act, 1919 N.S.W., as amended, involved a number of subsidiary questions, including the following: (a) Was the land used for carrying on a business? (b) If so, was it so used by the occupier and was the business that of grazing? and (c) If yes to all these questions, was it wholly or mainly used for carrying on that business.